Archive for the ‘Canon 5’ Category

Readers undoubtedly know that the Supreme Court of the United States will soon decide whether judges, or at least judicial candidates, may solicit campaign contributions personally (i.e., in lieu of, or in addition to, the customary campaign committee of “responsible persons”). The Court heard oral argument today. It was not a disaster for those in support of limiting the actual and apparent corrupting effects of money (and judges’ direct solicitation of that money from the lawyers and parties likely to appear before them), but perhaps the best possible outcomes would be either a 5-4 decision upholding the Canon or a narrow decision essentially carving out a First-Amendment-driven, mass-mailing-like exception to the Canon. (Williams-Yulee directly solicited money through a mass mailing, which generally does present less harm than in-person, telephonic, or other real-time solicitation.) Interesting reading follows on this case and the oral argument:

(3) The transcript of the oral argument is here. The Justices’ questions generally fall along anticipated ideological divides (e.g., the conservative Justices seem to support uninhibited solicitation of campaign contributions and the liberal Justices seem to support more regulation in judicial elections). Justice Kennedy’s vote is key, and his few questions are not telling. Stay tuned.

The Supreme Court has agreed to hear another case on the Code of Judicial Conduct. It has not explicitly done so since Republican Party of Minnesota v. White (and we all know how that one turned out; cf. also the Caperton and Carrigan opinions). Judicial candidate Lanell Williams-Yulee signed a mass-mailing in which she solicited contributions to her campaign. Not surprisingly for those who have read the judicial ethics code in effect in a majority of states, this conduct violated the prohibition against personally soliciting campaign contributions. “A candidate . . . for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds. . . .” Fla. Code of Judicial Conduct Canon 7C; see also 2007 Model Code R. 4.1; 1990 Model Code Canon 5C. As the 2007 Model Code (but not the Florida Code) helpfully defines, moreover, “’Personally solicit’ means a direct request made by a judge or a judicial candidate for financial support or in-kind services, whether made by letter, telephone, or any other means of communication.” The Florida Supreme Court thus publicly reprimanded Williams-Yulee for violating the Canon, notwithstanding her complaint that the Canon violates the First Amendment “in that it limits a judicial candidate’s right to engage in free speech by prohibiting a judicial candidate from directly soliciting campaign contributions.” The circuits have split on the First Amendment issue, and Williams-Yulee sought cert on that basis. (Of note, her petition relies in part on the Ninth Circuit’s recent split decision invalidating the personal solicitation canon as applied to non-judges, but the Ninth Circuit has since agreed to rehear the appeal en banc this December. See Wolfson v. Concannon en banc petition and panel opinion.) In part because Williams-Yulee’s adversary (the Florida Bar) made the controversial decision to urge the Supreme Court to hear Williams-Yulee’s petition, the Supreme Court has agreed to do so.

Of potential interest, the cert petition, in Appendix D, includes a copy of Williams-Yulee’s solicitation letter. In it, Williams-Yulee tells an unknown number of local lawyers, litigants, and others that:

I need to mount an aggressive campaign. I’m inviting the people that know me best to join my campaign and help make a real difference. An early contribution of $25, $50, $100, $250, or $500, made payable to “Lanell Williams-Yulee Campaign for County Judge”, will help raise the initial funds needed to launch the campaign and get our message out to the public. . . . Thank you in advance for your support.

As an editorial comment, let’s hope that at least five justices recognize the significantly coercive and corrupting effects of personal solicitation (both in reality and in appearance and both as to the judge and the contributor), particularly combined with the fact that the judges or prospective judges would be directly soliciting money from the same lawyers and parties who appear or will appear before them.

The Seventh Circuit weighed in last week on three common judicial ethics rules governing campaigns. Readers may recall that the Seventh Circuit is not shy about shaking things up in this area. [See Buckley v. Ill. Jud. Inquiry Bd., 997 F.2d 224, 230 (7th Cir. 1993) (striking down announce clause well before White came along).] To misappropriate Monroe Freedman’s famous term from another context, this new opinion is the latest in the growing “trilemma” of reconciling the First Amendment, Judicial Elections, and Impartiality (including its due process element). The rules at issue this time around had prohibited three campaign practices: (1) joining a party; (2) endorsing partisan candidates; and (3) directly soliciting campaign contributions. According to the court, this is how each rule fares, respectively: (1) unconstitutional; (2) constitutional; and (3) constitutional. The full opinion, with dissent, can be found here (Siefert v. Alexander). Readers may recall that the district court in early 2009 struck down all three prohibitions under First Amendment strict scrutiny analysis.

In addition to other repercussions, the U.S. Supreme Court’s June decision in Caperton v. A.T. Massey Energy, 129 S. Ct. 2252 (2009), may help the states defend restrictions on political and campaign activity in their codes of judicial conduct. Since the Court’s 2002 decision, in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), numerous First Amendment lawsuits have been filed in federal courts, usually by right-to-life organizations, and many (although not all) have succeeded in overturning restrictions on what judges and judicial candidates can say, how they can raise funds, and whether they can be involved in other candidates’ campaign and partisan politics. (For a discussion of the caselaw after White, click here.)

In the first post-Caperton decision, however, the U.S. District Court for the Northern District of Indianaupheld the constitutionality of canons in Indiana’s revised code of judicial conduct that prohibit judges and judicial candidates from making pledges, promises, and commitments; require disqualification based on a prior commitment; prohibit judges and judicial candidates from acting as a leader or holding office in or making speeches on behalf of a political organization; and prohibit judges and judicial candidates from soliciting funds for, paying an assessment to, or making a contribution to a political organization or a candidate for public office and personally soliciting or accepting campaign contributions other than through a campaign committee. Bauer v. Shepard, Opinion and Order (July 7, 2009). The court relied in part on Caperton.

Although the parties disagree about what bearing the Supreme Court’s decision in Caperton should have on this Court’s ruling in this case—the Supreme Court did after all repeatedly note the exceptional, extraordinary, and extreme facts of that case—Caperton does illustrate that judicial elections and judicial conduct (including the issue of recusal) can have important due process of law implications. Additionally, the Caperton Court noted that the state codes of judicial conduct “serve to maintain the integrity of the judiciary and the rule of law,” and it quoted approvingly the following statement from the amicus curiae brief filed by the Conference of Chief Justices: “the codes are ‘[t]he principal safeguard against judicial campaign abuses’ that threaten to imperil ‘public confidence in the fairness and integrity of the nation’s elected judges.’” . . . For the Court, a state’s interest in judicial integrity is “vital” and “of the highest order”: “Courts, in our system, elaborate principles of law in the course of resolving disputes. The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments. The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity. Judicial integrity is, in consequence, a state interest of the highest order.”

The court also relied extensively on the preamble and comments to the Indiana code, which were based on the ABA 2007 Model Code of Judicial Conduct (the Indiana preamble is identical to the model; the comments are not although they are similar).

Although the litigation such as that necessary to resolve the Senate race between Al Franken and Norm Coleman is fortunately extremely rare, it demonstrates the importance of having a non-partisan judiciary available to resolve such conflicts. Fortunately for Minnesotans, their legislature has declared that judicial elections should be non-partisan, and the Minnesota Supreme Court has implemented that decision by adopting a code of judicial conduct that prohibits judges and judicial candidates from endorsing political candidates and engaging in other partisan activity. Therefore, none of the justices on the Minnesota Supreme Court had to recuse themselves because they had endorsed Franken or Coleman (although two had to recuse because they were on the state-wide canvassing board), and the majority of the highest court in the state was available to do the job for which they were elected – decide the most important legal issues for the people of the state. Fortunately, a federal court recently rejected a challenge to the Minnesota endorsement clause so that, if a similar situation arises in the future, the same protections will apply. Wersal v. Sexton, 607 F. Supp. 2d 1012 (District of Minnesota 2009). The plaintiff in that case had argued that disqualification would protect judicial impartiality, but the court disagreed, focusing on the un-workability of recusal not in the rare case but “when a judge endorses an individual who is elected to a position where he or she is frequently a litigant.”

Wisconsin is not so fortunate, as a federal court there overturned the endorsement clause and other restrictions on partisan political activity even though judicial elections are supposed to be non-partisan by law. Siefert v. Alexander, 597 F. Supp. 2d 860 (Western District of Wisconsin 2009). The court believed the “gag order” was not “fooling anyone” because “many if not most judicial candidates have political lives before their judicial campaigns and often are easily identified as ‘Republican’ or ‘Democrat’ even if they do not explicitly run as such.” What the court fails to recognize is that by requiring judicial candidates to eschew party labels during the campaign, the code ensures that judicial candidates demonstrate their willingness to take on a new role and reject partisan loyalties and embrace judicial independence once on the bench.

The Honorable Raymond McKoski (Illinois) recently published a thorough examination of charitable fund-raising under the ethical rules, old and new. Here is the abstract:

To promote public confidence in the judicial system, judges are prohibited from engaging in conduct that reflects adversely upon their independence, impartiality, or integrity. Since public trust is damaged by on-bench and off-bench activities, codes of judicial conduct severely restrict a judge’s partisan political activities, private speech, business dealings, social life, religious activities, and charitable endeavors. This Article examines the restrictions placed on a judge’s fund-raising efforts in support of civic, educational, charitable, fraternal, professional, and religious organizations. The Article begins by tracing the evolution of judicial fund-raising regulations through the ABA Model Codes of Judicial Conduct of 1924, 1972, 1990, and 2007. Next, specific fund-raising prohibitions of the 2007 Model Code are evaluated against the rational supporting the state’s right to limit a judge’s extra-judicial activities. The Article concludes that some of the 2007 Code’s fund-raising restrictions are justified because they prevent measurable damage to confidence in the judiciary. Other rules, however, prohibit conduct that is either harmless to, or actually enhances, the image of the judiciary. Those restrictions are not justified and should be eliminated.

Judge McKoski also recently published a thorough exploration of judges’ private use of their official stationery, which likewise traces (among other things) the ABA’s treatment of the subject through the near century’s worth of Model Judicial Codes. Links to both works can be found in Articles.

Judicial campaign fund-raising was one of the major judicial conduct stories in 2008, as it has been in the past and no doubt will be in the future. Campaign contribution and spending records were set in state supreme court races in 2008. In Caperton v. Massey, the United States Supreme Court decided to take a case raising the issue whether $3 million spent by a company’s CEO in support of a supreme court justice’s campaign presents due process considerations when that company appeals a $50 million verdict to the court. The case prompted the filing of nine amicus briefs in support of the petitioner, most representing the position of several individuals or organizations, and five in support of the respondent (see www.brennancenter.org/content/resource/caperton_v_massey). Oral argument is scheduled for March 3, 2009.

Personal solicitation of campaign contributions led to judicial discipline in 2008, with a modern twist to some of the violations. A videotape on YouTube.com showed judicial candidate Willie Singletary telling riders at a motorcycle rally, after offering a blessing for the riders and their bikes, “There’s going to be a basket going around because I’m running for Traffic Court Judge, right, and I need some money. I got some stuff that I got to do, but if you all can give me $20 you’re going to need me in Traffic Court, am I right about that?” The judge further stated, “Now you all want me to get there, you’re all going to need my hook-up right?” He was elected, and the Pennsylvania Court of Judicial Discipline publicly reprimanded him for personally soliciting and accepting campaign funds, conduct “so extreme as to bring the judicial office into disrepute,” and violating the requirement that a judicial candidate maintain the dignity appropriate to judicial office. In re Singletary, Opinion (December 1, 2008), Order (January 23, 2009) (www.cjdpa.org/decisions/jd08-01.html).

The Kansas Commission on Judicial Qualifications ordered a judicial candidate to cease and desist from publicly soliciting campaign contributions after receiving multiple complaints that he had sent attorneys a cell phone text message that stated: “If you are truly my friend then you would cut a check to the campaign! If you do not then its time I checked you. Either you are with me or against me!” Inquiry Concerning Davis, Order (July 18, 2008). The Commission found that the candidate personally solicited campaign contributions and that the intimidating nature of the text message violated Canon 1. The candidate accepted the order.

Later in 2008, however, in a challenge filed by a sitting judge, the U.S. District Court for the District of Kansas held that the clause prohibiting judicial candidates from personally soliciting campaign contributions was unconstitutional. Yost v. Stout (November 16, 2008). That same conclusion was also reached by the U.S. District Court for the Eastern District of Kentucky in 2008 (Carey v. Wolnitzek, Opinion and order (October 15, 2008)) and the U.S. District Court for the Western District of Wisconsin in February 2009 (Siefert v. Alexander, Opinion and Order (February 17, 2009)). The Kansas court found that allowing solicitation “by a campaign committee does not assure that the candidate is unaffected or even unaware of who does and does not contribute to the campaign.” The court also stated that “garner[ing] public support and campaign contributions does not, in itself, suggest that candidates will be partial to their endorsers or contributors once elected” and “the recusal canon is narrowly tailored to cure any impartiality that may result from a candidate personally soliciting contributions.” The Kentucky court concluded that, “while it may be less difficult for a solicitee to decline a request for a contribution when the request is made by a committee, ‘the state does not have a compelling interest in simply making it more comfortable for solicitees to decline to contribute to judicial campaigns.’”

In February 2009, the U.S. District Court for the District of Minnesota upheld the Minnesota version of the solicitation clause because it allows a judicial candidate to personally solicit campaign contributions when speaking to groups of more than 20 persons or by signing a letter and requires a candidate to “take reasonable measures to ensure that the names and responses, or lack thereof, of those solicited will not be disclosed to the candidate . . . .” Wersal v. Sexton (February 4, 2009). The court rejected the plaintiff’s argument that the clause is unconstitutional because recusal is a less restrictive means of preventing bias, noting “the rash of recently filed petitions for Writ of Certiorari indicate that recusal may not be an effective method of preventing bias and ensuring justice.”

In a partial dissent to an order adopting a new code of judicial conduct based on the 2007 ABA Model Code, a justice of the Montana Supreme Court expressed reservations about the prohibition on a judge making public statements on pending cases in light of Republican Party of Minnesota v. White.The dissenting justice accepted it as a good faith effort to provide a rule that conforms with White, but noted that the rule may need to be revisited to accommodate future court decisions.

The dissenting justice need not be concerned.White and its progeny raise no doubts about the constitutionality of the restriction on commenting on pending cases or any code provision that does not involve campaign or political conduct.

In Republican Party of Minnesota v. White, 536 U.S. 765 (2002), the United States Supreme Court held that a state cannot, consistent with the First Amendment, prohibit judicial candidates from announcing their views on disputed legal and political issues.The crucial point for the majority was that the Court has “never allowed the government to prohibit candidates from communicating relevant information to voters during an election.”

In her concurring opinion, Justice O’Connor wrote that in choosing “to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system . . . the State has voluntarily taken on the risks to judicial bias . . . .”Similarly, in his concurring opinion Justice Kennedy emphasized that “the State may not regulate the content of candidate speech merely because the speakers are candidates.”

Thus, the White decision focused exclusively on the needs of voters for information about the candidates in judicial election campaigns and the rights of candidates to communicate with those voters.It did not announce any new-found, unassailable First Amendment rights for judges that would apply outside of the political realm.

In contrast to the announce clause, the restriction on commenting on pending cases applies to judges because they are judges, not because they are candidates, and applies regardless how judges are selected.It does not prohibit speech based on content but simply requires a judge to make any comment on a pending case on the record in the case, in other words, when and where judges are supposed to be commenting on cases in fulfillment of their responsibilities.

No citizen has absolute First Amendment rights, and the public comment restriction reflects a balance most judges freely and willingly accept in deference to the justice system they serve and the public it protects.

While it has been nearly twenty years since the last federal judge was fully impeached, the two-decades-long (nearly) unblemished record may be shattered soon. District Judge Thomas Porteous (E.D. La.) has been publicly censured for (among other accusations) soliciting money from attorneys appearing before him and filing false financial disclosure forms. To read the Judicial Council of the Fifth Circuit’s underlying Order and Public Reprimand, click here (citing violations of 28 U.S.C. § 455 and Canons 1, 2A, 3C(1), 3D, 5C(1), (4), and (6) of the Code of Conduct for United States Judges). The Council even opines that Judge Porteous committed several federal crimes (such as honest-services mail fraud), in addition to the ethical violations. The House Judiciary Committee has just formed a task force to consider the nuclear impeachment option.

This is big. The last federal judge impeached was former District Judge Alcee Hastings (S.D. Fla.) for allegedly accepting a bribe for lenient sentencing and then committing perjury. Mr. Hastings then became a Congressman.

At least one nagging question: If the reports are accurate that Judge Porteous has twice offered to retire in light of his struggles, is impeachment necessary? To deter other federal judges from committing felonies? To punish or judicially incapacitate the Judge? Would not retirement plus criminal prosecution (if warranted) be sufficient?